UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4584

KEVIN LARENZO KING,

Defendant-Appellant. 

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

James A. Beaty, Jr., District Judge.

(CR-00-329)

Submitted: April 25, 2002

Decided: May 6, 2002

Before WILLIAMS and KING, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed in part and dismissed in part by unpublished per curiam

opinion. 

COUNSEL

Thomas H. Johnson, Jr., GRAY, NEWELL, JOHNSON & BLACKMON, L.L.P., Greensboro, North Carolina, for Appellant. Anna Mills

Wagoner, United States Attorney, Harry L. Hobgood, Assistant

United States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Kevin Larenzo King pled guilty to bank robbery with a dangerous

weapon in violation of 18 U.S.C.A. § 2113(d) (West 2000), and was

sentenced as a career offender to a term of 194 months imprisonment.

U.S. Sentencing Guidelines Manual § 4B1.1 (2000). King appeals his

sentence, alleging that the district court erred in sentencing him as a

career offender, in making a three-level enhancement for brandishing

a dangerous weapon, USSG § 2B3.1(b)(2)(E), and in denying his

request for a departure below the career offender guideline range on

the ground that it overstated the seriousness of his past criminal conduct. USSG § 4A1.3, p.s. We affirm in part and dismiss in part. 

King claims that the enhancement for brandishing a dangerous

weapon did not apply because he used a toy gun. The weapon he used

in the bank robbery was not recovered. However, the enhancement is

properly applied when the defendant uses an object that appears to be

a dangerous weapon. USSG § 2B3.1, comment. (n.2). Because King

brandished an object that appeared to be a firearm, the enhancement

was properly applied. 

King contends that the court erred in sentencing him as a career

offender because the government failed to file an information seeking

an enhanced sentence.* See 18 U.S.C.A. § 3559(c)(4) (West 2000);

21 U.S.C. § 851 (1994). A career offender sentence under § 4B1.1

does not require such notice. United States v. Foster, 68 F.3d 86, 88

(4th Cir. 1995). 

*King did not raise this issue below, so our review is for plain error.

United States v. Olano, 507 U.S. 725, 731-32 (1993) (to obtain reversal,

defendant must show error that was plain, affected substantial rights, and

seriously affects the fairness, integrity, or public reputation of judicial

proceedings). 

2 UNITED STATES v. KING
Last, the district court’s decision not to depart below the career

offender guideline range is not reviewable on appeal because it is

clear that the district court understood its authority to depart and

determined that a departure was unwarranted. United States v.

Edwards, 188 F.3d 230, 238-39 (4th Cir. 1999). 

We therefore affirm the sentence. We dismiss that portion of the

appeal which challenges the district court’s decision not to depart. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED IN PART, DISMISSED IN PART

UNITED STATES v. KING 3